Between 1930 and 1962, the eminent Sanskritist and lawyer Pandurang Vaman Kane (pronounced KAH-nay) produced a five-volume monograph entitled History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law) , published by the Bhandarkar Oriental Research Institute in Pune, India. This work of over 6,500 pages provides much more than a narrow focus on law or the special genre of Sanskrit literature devoted to religious and legal duties, the Dharmaśāstra. It contains rather something close to an intellectual history of Hinduism, from its origins in the Vedic texts to contemporary debates about the “reform” of Hinduism in nineteenth and twentieth centuries. Kane understood his task as presenting the broadest possible survey of the role legal, religious, and ethical thought in the history of Hinduism, with regular incursions into other religious traditions as well. A modern scholar of Dharmaśāstra, Richard Lariviere, is fond of saying, “We all make our living from Kane’s footnotes.” Indeed, Kane’s work has become a constant source of reference and orientation in South Asian studies of law, religion, ritual, literature, history, and more. It is a work that has perhaps literally launched a thousand dissertations because it is so easy to refer a student or a colleague to the appropriate section of Kane as a way to get their bearings in relation to hundreds of topics in the fields of Hindu studies or Indian social and intellectual history.
So, why do we need a new history of Dharmaśāstra? Kane’s work does have shortcomings that have grown more acute over time. First, as one can imagine, it is unwieldy and somewhat chaotic in organization due to the long period of its composition, but also because it sets few limits on what can be topically related. Digressions abound, and the special interests of the author sometimes get long treatment at the expense of other equally significant topics. Second, it is written in “Sanglish,” that glorious creole of English syntax and Sanskrit vocabulary that is well known to students of Sanskrit, but hardly accessible to or liked by others. Long footnotes and parenthetical citations in the Devanagari script work wonders for specialists, but do nothing but put off other intelligent readers. Finally, and most importantly, several of Kane’s arguments are wrong or presented in an outmoded framework that obscures the real significance of certain ideas, texts, and institutions. In particular, Kane too rarely makes clear the historical context of textually expressed ideas. The history of textual development is substituted for a fuller history of institutions, social realities, and ideas that put texts in proper perspective. 1
We respectfully and affectionately call the volume before you a “new Kane.” We have tried to create a streamlined and updated volume that conveys a similar range of topics as Kane does, but with special attention to historical contexts, conflicts, and developments. Kane demonstrated the expansive scope of the Sanskrit concept of dharma , perhaps the key religious concept in the history of South Asia, and what it would take to give a comprehensive textual overview of its semantic reach. We want to follow in his footsteps, by providing a comprehensive, but manageable, interpretive study of the history of law and legal texts in Hindu traditions. While there are many words for law in Sanskritic and vernacular languages of India, the notion of dharma became central early on to the debates and conceptualizations of legal and religious questions such as justice, morality, sin, social obligations, rights, politics, and stratification. To a great extent, therefore, the present volume explores the specific articulation of dharma within the normatively focused genre of Dharmaśāstra and closely related textual traditions. 2
The first claim of this book, therefore, is that the history of Hinduism cannot be written without the history of Hindu law. Each chapter tries to explain why, through a pointed study of an important aspect or topic of dharma in Dharmaśāstra. Some religious traditions—Judaism and Islam, for example—are burdened by a stereotype that legalism and law stand as the fixed core of these traditions. Traditional Christian apologists berate Jewish tradition for its legalistic impulse, and the much-misunderstood Shari’a haunts media portrayals of Islam not only in our own time but also in earlier periods. 3 The opposite problem afflicts the study of Hinduism. Stereotypically, India is viewed as a land of spirituality, and Hinduism above all stands in for India’s allegedly ubiquitous religiosity. Behind the fog of the “spiritual empire,” it is hard to see any longer the deep and powerful role of law, legalism, and legal thought in the history of Hindu traditions and other religious traditions of South Asia. In order to orient readers to this underappreciated aspect of the history of Hinduism, we turn now to some of the major themes that run through the chapters of this book.
As with any normative textual tradition, the first question most people want to ask is how the norms and rules were applied in practice. The question has been answered in many ways by luminaries in the field. 4 The precise relationship of Dharmaśāstra and practice varied, whether in religion, law, commerce, politics, or social interaction. We should not expect that Dharmaśāstra had the same type of influence on society over more than two thousand years of its history. In some periods and places, it seems to have provided basic categories of self-identification and written expression, thereby indicating a strong influence. In other times and places, one must conclude that the Dharmaśāstra had little or no influence because its ethos, assumptions, and details are absent or rejected. Conversely, the impact and imprint of societal changes and innovations on the dharma tradition itself must form a fundamental part of any history of Dharmaśāstra. It is part of the ongoing work of scholarship about Dharmaśāstra to ascertain and describe this variable influence through comparative and corroborative research using other historical sources.
Historical variability of the text–practice connection aside, anyone who spends time with the texts of Dharmaśāstra quickly learns that it is a tradition of surprising cohesiveness for its antiquity, of intellectual sophistication of both the genius and pedantry varieties, and of a stable core of hermeneutic methods for preserving and transmitting the tradition. In short, it is what we might call today an intellectual project, or earlier an elite ideology. Squarcini calls this ideology the “the brahmanical regulatory project” (2011 : 135). Stein, more provocatively, calls it a “Brahmin conspiracy” (1969 ). To characterize the nature of Dharmaśāstra as an intellectual project, I want to cite several important summary views of the issue:
The treatises are almost all of them apocryphal. They have a character which is primarily didactic and often purely literary. They never had the force of positive ordinances, and the doctrine itself which they propound, half religious and half juridical, undoubtedly shares the fate of holy and ideal books. They agree only moderately with the way of the world and are more respected than obeyed.
The fault of a highly intellectual, comprehensive system of thought, especially one devised by generations of pedants inclined to encyclopedism, as the Brahmins were, is that it stultifies growth, defies and discourages new ideas, and provides a powerful systematic hindrance to innovation. (Derrett 1973b : 31)
What I wanted to show in this essay is that it is possible, in a culture in which memorization plays an important role in day-to-day life, to have books, the Dharmaśāstras, that are legal fiction because they were divorced from the practical administration of justice—the role they were given in 1772—but which are not for that reason the product of brahminical fantasy. They are books of law—rather, books of laws. (Rocher 1993 : 267)
I believe that the dharmaśāstra literature represents a peculiarly Indian record of local social norms and traditional standards of behavior. It represents in very definite terms the law of the land. (Lariviere 1997 : 98)
The Dharmaśāstra represents an expert tradition and, therefore, presents not a “record” of custom but a jurisprudential, or in Indian terms, a śāstric reflection on custom. Custom is taken here to a second order of discourse.…All śāstras represent a meta-discourse; they deal with reality but always once removed.
(Olivelle 2005a : 62, 64)
The issue of practice factors in to these considerations and characterizations, but all students of the huge scholastic corpus of Dharmaśāstra agree that it is an intellectual tradition associated with Brahmin communities and worldviews. As in all legalistic genres, the question of practice takes a backseat: “Legalism means the world is addressed through categories and [explicit] rules that stand apart from practice” (Dresch 2012 : 15). As this book hopes to demonstrate, dharma authors were concerned with practice, with change, and with social realities. However, the form and idiom of their concern was an intellectual tradition that had its own conventions and expectations. Dharmaśāstra, like all śāstra , presents itself a “model for” religious law, not a “model of” it. In reality, though, the texts are also “models of” the prevailing views and practices of particular places and times, now transposed into a prescriptive format.
The dharma authors took their work seriously and saw in it the apex of human aspiration. Many authors and those who supported their work (kings and upper and rising communities) actively inculcated dharma practices and ideals in their time and place. That does not mean, however, that such a tradition could ever speak for the whole of Hinduism. Insofar as “expert traditions” of this sort operate in an isolated, self-referential intellectual world, they must be viewed as one form of elite ideology, the influence of which must be judged from historical case to historical case. It is critical to understand the expert or virtuosic nature of the Dharmaśāstra in order to read the texts generously and appropriately as part of their own tradition.
Having accepted that Dharmaśāstra is an intellectual project guided by scholars from an elite community, the main goal of this volume is to show that, in spite of theological claims to the contrary, Dharmaśāstra has a history. It began in a particular period in response to sociohistorical circumstances. Its transmitters and protectors introduced innovations, though rarely admitted it. It shaped both discourses and practices in Hindu traditions (and influenced other non-Hindu traditions) and responded to pressures from and engagements with them. Many chapters in this volume tackle the historical evolution of both the texts and genres of Dharmaśāstra and the distinct subjects that have fallen within its purview.
Trying to write history on the basis of sources that deny history presents obvious difficulties. First, readers who are new to Dharmaśāstra are likely to be frustrated by the imprecise dates that many contributors mention and the subsequently broad chronological terms they have to use to describe a given topic. Absolute chronology is rarely possible. Even relative chronology is difficult for the earliest texts. Second, until the period of the extant commentators in roughly the eighth century ce , the names of the authors of Dharmaśāstra texts are all eponymous, most being the names of famous sages or divinities of the Vedic tradition now attributed to new texts. Even in later periods, we may know the names, regional origins, and minor biographical details of some authors, but almost no text provides a sufficient basis from which to draw conclusions or make connections to the personal history of the authors. Therefore, except at a general level, the Dharmaśāstra provides little information about time, place, or authorship—three things we would dearly love to know more about.
Nevertheless, a history of Dharmaśāstra is possible because the texts can be chronologically arranged in relative terms such that the internal development of the tradition becomes clear, even if some dates and details would ideally be more fixed in absolute terms. The first kind of history readers will find in this volume, therefore, is the intellectual history of Dharmaśāstra itself. When did certain topics appear in the tradition? How did others change, narrow, or expand over time? What were the disagreements between authors about controversial topics and how did the tradition settle those conflicts? Though more speculative, the second kind of history we pursue here draws on sources beyond the Dharmaśāstra to make arguments about why particular changes occurred in the tradition. In other words, where possible, we try to place innovations and shifts within Dharmaśāstra into a wider sociohistorical context, either to explain why Hindu law changed or how Hindu law altered another social domain. Within the limits of the historical evidence, contributors thus also present an external view of the development of Dharmaśāstra.
On occasion, dharma authors self-consciously acknowledged innovations. If the change was seen as good, then a variety of interpretive techniques might be called upon to justify the difference and reconcile the texts. One regularly encountered technique invoked the four ages (yuga ) of the world to say that the rules change in each age, especially in our degenerate Kali age (e.g., MDh 1.85; PārSm 1.24). Another technique was more pointed and it inverted the usual rule that customary laws must be consistent with textual laws. When commentators (rarely) invoke the idea of lokavidviṣṭa , “despised by the world,” they are placing socially accepted norms above ancient texts (Olivelle 2016b : 34–8). If, by contrast, the change was unacceptable, then an author would dismiss it either as a poor interpretation or as based on a fabricated text. Dharmaśāstra authors did not, however, address or explain larger innovations, especially expansions of the topics of dharma itself. In these cases, we have to look beyond these texts for clues about the motivations and processes of change.
One of most conspicuous aspects of ancient Vedic and Brahmanical religious traditions is an obsession with the details of ritual practice and its efficacy. The poetic beauty and complexity of the Ṛgveda quickly gave way in the later Vedas and Brāhmaṇas to a serious and meticulous concern for the correct performance of the rites that also underlay the philosophical and spiritual aspirations of the Upaniṣads. Other Hindu traditions—some Yoga, Vedānta, Bhagavad-Gītā , and bhakti traditions, for instance—disparaged the ultimate value of ritual. In particular, many criticized the ritual obsession of Pūrva-Mīmāṃsā, the tradition of Vedic ritual hermeneutics focused on the middle Brāhmaṇa layer of the Vedas, and its partner, the Dharmaśāstra, a tradition that extended the paradigm of ritual into the social arena in a deliberate and influential way.
Many of the chapters herein describe specific ritual practices as core elements of the religious life envisioned in Dharmaśāstra. Ancestral rites, daily domestic observances, rites of passage, marriage, adoption, ritual gifts, ascetic regimens and lifestyles, vows, pilgrimages, and temple worship all form major topics of dharma at various points in the tradition. Substantively, dharma consists precisely of these ritual actions, undertaken in accordance with the rules and procedures specified in the texts. It is no coincidence that the Hinduism depicted in Dharmaśāstra is based on a large body of rituals, many of which center on the household and family as the paradigmatic space of religious life for Dharmaśāstra. The origins of that household focus, solidified by the time (ca. second century ce ) of the famous Laws of Manu (Mānava-Dharmaśāstra ), are reexamined in this volume and are part of an ongoing investigation into the possibly ascetic origins of “householder-ism.” After Manu, however, the rituals of the household and householder remained the stable core of dharma until temple rites finally found a prominent place in Dharmaśāstra beginning in the twelfth century ce . Thus, religious ritual in an expanding way functioned as a foundation for Dharmaśāstra.
This foundation is important not only because actual rituals comprise a large part of dharma , but also because other areas of human life were gradually conceived in ritual terms within Dharmaśāstra. Everyday social interaction, legal procedure, commerce, punishment, kingship, state administration, and education all take on ritual elements as part of their exposition within the system of dharma . The logic of ritual emerges specifically from another Hindu intellectual tradition already mentioned, the Pūrva-Mīmāṃsā. Mīmāṃsā lent its exegetical principles and hermeneutic techniques to many other traditions including Dharmaśāstra (Sarkar 1909 ; Jha 1964 ; McCrea 2010 ). By relying on Mīmāṃsā principles and borrowing its exegetical techniques, Dharmaśāstra subtly translated non-ritual practices into a ritualistic form. For example, though different orders of life (āśrama : student, householder, retiree, and renouncer) were once seen as optional (vikalpa ) choices for one’s whole life, the superiority of aggregation through sequence (samuccaya ) according to Mīmāṃsā led to the establishment of the well-known Hindu stages of life (Olivelle 1993 ). Ritual logic thus shaped social logic.
In the area of law, too, ritual in its Mīmāṃsā sense undergirds both legal interpretation and the overall scheme of law. The same techniques used to harmonize texts, to resolve textual conflicts, and to establish basic readings of legal rules all follow Mīmāṃsā hermeneutics. And, just as the Vedas teach us religious ritual through textual rules, so also do the Dharmaśāstras teach us social ritual through textual rules (Davis 2010 : 62). In this way, law and religion merge within dharma in a way that makes it difficult to disaggregate them in many instances.
Finally, the meticulous examination of ritual in Mīmāṃsā produced a textual corpus that embraced detail, nuance, and lists as the essential building blocks of dharma . In Dharmaśāstra, similarly, we find long, detailed discussions of points of scholastic disputation that pore over the minutiae of text criticism, etymology, syntax, semantic range, and interpretive history. Frequent lists punctuate the discussions, sometimes as illustrative examples of a practice and sometimes as a comprehensive enumeration of a topic. 5 Each member of a list might be treated in close detail. Following this process, the Dharmaśāstra takes a decidedly premodern form that can be hard to appreciate at first. However, it is exactly in this ritual and legalistic valorization of detail that we find one of most distinctive contributions of Dharmaśāstra to the history of Hinduism. For that reason, it is worth the time and effort to overcome our modern hang-ups and learn to read these texts on their own terms.
In the context of the history of Hinduism, the most important function of the Dharmaśāstra has been its repeated claims to declare boundaries for a tradition that is famously unbounded. To be clear, no dharma text ever uses the words Hindu or Hinduism . Without revisiting the fraught history of Hinduism as a category (Sontheimer and Kulke 1997 ; Lorenzen 1999 ; Pennington 2005 ), what I mean is that Dharmaśāstra regularly drew distinctions between “us” and “them.” The religious and political communities thus imagined came in modern times both to support and to question expressions of what Hinduism means and what defines a Hindu.
In religious terms, Dharmaśāstra regularly disparages the doctrines and practices of traditions that deviate from its norms. One will encounter references to nāstika s (e.g., MDh 2.11) in which good people are encouraged to shun and ostracize those who deny the Vedas and Dharmaśāstras by relying on their own logic. Likewise, “heretics” (pāṣaṇḍa ) appear in many texts as religious communities living contrary the dharma of classes and life-stages. Finally, some medieval texts call the rites and beliefs of some sectarian communities “corrupt, vile” (dūṣya ). All these terms, in fact, are sometimes used against non-Hindu groups such as Buddhists and Jains and sometimes against other Hindu groups such as the Pāśupatas and Pāñcarātras. In each case, the Dharmaśāstra authors exalt the religious life described in their tradition and denigrate the religion of others.
In the social arena, three well-known classifications are deeply associated with Dharmaśāstra and defended by its authors. In many places, Manu preserves the old division of Āryas (noble/good people) and Mlecchas (foreigners), and this division recurs regularly in later texts. In the ideal portrayal of Dharmaśāstra, society consisted of four social classes (varṇa ), also called castes: the Brahmins (scholars and priests), Kṣatriyas (kings and nobility), Vaiśyas (farmers and merchants), and Śūdras (servants and laborers). Class division is at the heart of the structure of Manu’s dharma . Accordingly, the dharma of classes and life-stages (varnāśramadharma ) consistently dominates in Dharmaśāstra (Kane I: 11). As Rocher states:
The important but easily overlooked point is that it is normal, that it is a premise, in Hinduism, that what is dharma for one is different from what is dharma for another. Dharma, basically, is accepted custom (ācāra ), i.e. custom accepted in a region, in a village, even in a caste or a sub-caste within a village. (2012 : 116)
It is fair to say that Dharmaśāstra, more than any other Hindu tradition, vigorously and unashamedly defends class and caste divisions at both the theological and social levels. In fact, the theological defense of class and caste may be one of the defining features of the Hinduism imagined in Dharmaśāstra. In contemporary India, this defense is its most-attacked aspect and what it symbolizes to oppressed groups today. Even within this fourfold scheme, another division is made between the upper three “twice-born” (dvija ) classes and others. The twice-born classes have a second birth at the childhood rite of investiture with the sacred thread (upanayana ). In practice, it is mostly Brahmins who regularly wear the thread and who are referred to as dvija , but the differentiation of superior and inferior groups within the class structure proved to be remarkably stable as another theoretical social classification. These three classifications were subject to further reworking as the Śūdra class was divided into “good” (sat ) and “not good” (asat ) groups, especially in early modern texts. Below this whole scheme were the Caṇḍālas and Untouchables (aspṛśya ), whose existence is harshly noted but whose social situation is hardly even inferable from most Dharmaśāstra, in spite of the fact that they make up the largest portion of India’s population. Lastly, those who have fallen from caste (patita ) and the expiations required to be readmitted to the group are a major topic of Dharmaśāstra.
In the context of family, sons are divided into twelve types according to their level of legitimacy within the family and their ability to inherit from their father. Daughters and wives are similarly classified according to their status within the family. A primary and lawful wife (dharmapatnī ) has a ritual and legal standing far above any secondary wife, remarried wife, or mistress. Women in general were classed in relation to the primary men in their lives as understood in Dharmaśāstra: daughters, wives, and widows. Respectability within each of these major categories comes with clear expectations spelled out in the dharma texts. Legal and social disabilities often followed any failure to maintain respectability.
The point here is that in broad and narrow ways, Dharmaśāstra established norms for social conduct and interaction that drew sharp distinctions between socially and religiously acceptable people and those who were unacceptable. To the extent that it was accepted as authoritative by living communities, Dharmaśāstra served as an arbiter or touchstone of proper conduct for the idealized vaidika community, those people who saw their rites and traditions as based upon the transcendent Vedas. In medieval periods, many of these groups adopted the label Smārta as a marker of their professed adherence to the smṛti , that is, to the Dharmaśāstra. The rhetorical and social power of Dharmaśāstra was so great that we can see it function as a persistent point of reference for other Hindu traditions, even when those traditions sought to move past or even reject the ideas and practices of Dharmaśāstra (Davis 2007b ). In short, Dharmaśāstra captured an important core of religious and legal ideas and practices in India that other Hindu groups had to contend with in some way. In a polycentric religion such as Hinduism, Dharmaśāstra thus represents something close to an orthodox tradition, a powerful node in the network of Hindu traditions. It is worth noting that modern Hinduism has gradually but consistently moved away from this orthodoxy toward a more universalized self-expression that either incorporates diversity or articulates a higher unity for all Hindu communities. The possibility that some traditional ideas of Dharmaśāstra continue to lurk beneath the surface of new expressions of Hindu identity, doctrine, and practice remains probable. At the same time, it seems unlikely that Dharmaśāstra as such will make a comeback. If we want to know what lives on and what has passed, however, we have to study the history of Dharmaśāstra and its impact on contemporary articulations of Hinduism.
In Part 1 , we provide a concise overview of the literary genres in which Dharmaśāstra was written with attention to chronology and historical developments. The long author-by-author review of dharma texts given in Kane is irreplaceable, but it is also overwhelming and unnecessary for an interpretive history of Dharmaśāstra. Our approach divides the tradition into its two major historical periods—the origins and formation of the classical texts and the later genres of commentary and digest—in order to provide a thorough but manageable overview of the textual bases of the tradition. In Part 2 , we present descriptive and historical studies of all the major substantive topics of Dharmaśāstra. Culled from the topics identified as significant by the Dharmaśāstra authors themselves, each chapter provides readers with direct knowledge of the debates, transformations, and fluctuating importance of each topic. Indirectly, readers will also gain insight into the ethos or worldview of religious law in Hinduism, enabling them to get a feel for how dharma authors thought and why. Part 3 contains brief studies of the impact and reception of Dharmaśāstra in other South Asian cultural and textual traditions. Finally, Part 4 draws inspiration from “critical terms” in contemporary legal and religious studies to analyze Dharmaśāstra texts. The goal here is to provide interpretive views of Dharmaśāstra that start from hermeneutic and social concerns today. By taking this view, we hope to read the texts more transgressively and to seek out histories that were not necessarily intended by the authors. The authors of this part are by and large not experts in Dharmaśāstra, but rather scholars of the chapters’ respective themes who agreed to think through how Dharmaśāstra contributes new perspectives to wider themes in religious studies and beyond. The result is intended to be merely exemplary, a glimpse of what we think could be possible if more people took up a study of Dharmaśāstra. We raise this hopeful note for the future in the context of a real concern in the present, one that faces this book’s contributors and their academic fields.
For some time now, the symbolization of Dharmaśāstra as a source of Hindu tradition has grown in proportion to the ignorance of its contents. It is hard to find any traditional pandit working specifically on Dharmaśāstra, and only a few Sanskrit professors study the topic in India today. Many have heard of it and believe that gurus, temple leaders, and famous swamis know it and communicate it. The truth that we must self-consciously acknowledge, however, is that the most explicit engagement with Dharmaśāstra today is exemplified by this book and by the scholarship produced by its contributors and other academics generally. On the one hand, a small group of contemporary scholars—both within and outside of South Asia—has found in Dharmaśāstra a tradition of rich and diverse resources that are essential to the study of India and South Asia, from religion, law, and history to politics, economics, and kinship. On the other hand, our scholarly efforts also represent what may be the final stage in the disappearance or “sudden death” of interest and expertise in Dharmaśāstra among pandits and academics in India itself (compare Kaviraj 2005 ). Given the dynamics of colonial power and Orientalist thought, it seems likely that our academic efforts and those of our predecessors to make Dharmaśāstra known did more to hurt the tradition than to help it.
Lip service, prideful praise, caustic critique, and casual interest in this tradition is easy to find in political rhetoric, religious discourse, and even everyday life in India today. Just type Dharmashastra into a news site from India or even the news on Google. Finding a scholar anywhere, however, who has read the texts and interpreted them in sophisticated ways that take account of prior scholarship is a challenge. The ironies and sense of loss in how this small academic field has evolved are not lost on the editors of and contributors to this volume. Yet, we remain committed because we are caught intellectually and morally in an ongoing relationship and conversation with the authors of these texts, whose work has grabbed us in some way. Our unwavering sense that this tradition matters in a fundamental way for any responsible history of Hinduism has motivated our efforts in this volume to bring its complexity and significance to a wider audience.